Citation Nr: 18161173 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 18-09 180 DATE: December 28, 2018 ORDER Entitlement to an effective date prior to June 7, 2013, for the award of a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to an effective date prior to June 7, 2013, for Dependent’s Educational Assistance (DEA) is denied. FINDINGS OF FACT 1. The Veteran did not have a permanent and total disability prior to June 7, 2013. 2. Basic eligibility for DEA benefits did not begin earlier than June 7, 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 7, 2013, for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 2. The criteria for an effective date earlier than June 7, 2013, for the award of DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C.A. §§ 3501, 5110; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from March 1945 to July 1946. This matter is on appeal from an October 2010 rating decision for entitlement to an earlier effective date for the award of a total disability rating based on individual unemployability (TDIU) and entitlement to an earlier effective date for Dependent’s Educational Assistance (DEA). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). A hearing was scheduled for December 2018; however, the appellant and representative withdrew their hearing request. Effective Date Earlier effective dates The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). TDIU A TDIU claim qualifies as a claim for increased disability compensation. The Court determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400. Law and regulation also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See Harper v. Brown, 10 Vet. App. 125 (1997). TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Veteran was awarded a TDIU by an August 2017 rating decision effective June 7, 2013. He asserts that he is entitled to a TDIU prior to June 7, 2013. There are three determinations that the Board must make to determine the proper effective date for TDIU. First, the date that VA received the Veteran’s claim. Second, the date that the percentage requirements for § 4.16(a) were met. Third, the date that the Veteran’s service-connected disability or disabilities rendered him unable to secure and follow a substantially gainful occupation; i.e., the date that his service-connected disabilities or disability rendered him unemployable. The Board finds that the earliest claim for a TDIU was received by VA on September 23, 2014, when the Veteran submitted his VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). In the section requesting what service-connected disabilities prevented the Veteran from securing or following a substantial gainful occupation, the Veteran stated “Hearing, Health, Age, Weakness, and Memory”. The Board finds that no submission or medical record meets such criteria for a claim for TDIU prior to the receipt of the VA Form 21-8940 on September 23, 2014. The Veteran submitted a June 7, 2013 VA 21-4138 statement, contending that his service-connected condition for hearing loss had worsened since his rating in March 2013, effectively raising a claim for increased rating. No reference to interference with employability was made at that time, and there was otherwise no indication that such disability significantly impacted his employability. The Veteran was granted an increase in rating from 20 percent to 50 percent for bilateral hearing loss in a July 2014 rating decision. At the time of this rating the Veteran had also service-connected conditions for hemorrhoids at 10 percent from March 2010, and tinnitus at 10 percent from August 2012. Therefore, with the Veteran’s new rating for bilateral hearing loss, the Veteran’s combined evaluation for compensations for these conditions is 60 percent under 38 C.F.R. § 4.16(a), meeting the schedular criteria for a TDIU rating. An August 2017 rating decision granted TDIU and established an effective date of June 7, 2013, the date which the Veteran met the schedular requirements and continuously “prosecuted [the Veteran’s] claim since that date,” allowing him to increase his rating. The Veteran stated in a December 2014 VA 21-4138 form that he was self-employed as a handyman from 1994 to 2003, where he then retired in 2003. In the August 2017 rating decision granting TDIU, the decision conceded the combination of the Veteran’s employment and educational history with his level of service-connected disability, that it would likely be difficult for the Veteran to obtain and maintain gainful employment. There is no evidence to the contrary that the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation prior to June 7, 2013. Prior to the grant of 50 percent for bilateral hearing loss, the Veteran did not meet the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16 (a). After the award of 50 percent for bilateral hearing loss, effective June 7, 2013, the Veteran met the schedular criteria set forth in 38 C.F.R. § 4.16 (a). As such, the Board has determined above that June 7, 2013 is the appropriate effective date the award of service connection for TDIU. The Board finds that it is not factually ascertainable that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to June 7, 2013. Although the Veteran and his representative have generally asserted that an earlier effective date is warranted, they have not set forth any substantive arguments to support this claim. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Board finds the preponderance of the evidence is against the Veteran’s claim of entitlement to an earlier effective date for a TDIU. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Award of DEA benefits The Board’s denial of an earlier effective date for the award of TDIU precludes the assignment of an effective date prior June 7, 2013 for the award of DEA benefits. For the purposes of DEA benefits under 38 U.S.C. Chapter 35, the law relevant to the Veteran’s current claim provides that basic eligibility exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C.A. § 3501 (a)(1); 38 C.F.R. §§ 3.807 (a), 21.3021. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C.A. § 5113 (a). A total disability may be assigned where the Veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Here, the currently assigned effective date of June 7, 2013, for basic eligibility for DEA benefits is directly related to the award of a TDIU. Since eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total service-connected disability rating, permanent in nature, the effective date of such eligibility cannot precede the June 7, 2013 TDIU award. See May 2018 Rating Decision Codesheet (reflecting that, prior to June 7, 2013 the Veteran’s service-connected disabilities had a maximum combined evaluation of 40 percent from August 2011). Accordingly, although the Veteran contends that the effective date should be earlier than June 7, 2013, the assignment of an effective date prior June 7, 2013 for the award of DEA benefits is precluded by law. See 38 U.S.C.A. §§ 3501 (a)(1), 5113(a); 38 C.F.R. §§ 3.807 (a), 21.3021. See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). Because the law, and not the facts, is dispositive of the outcome of this issue, the benefit-of-the-doubt rule does not apply. See Sabonis, 6 Vet. App. at 430; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Yang, Law Clerk